UNITED STATES COURT OF APPEALS FOR THE NINTH...

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

NATIONWIDE LIFE INSURANCE

COMPANY,Plaintiff-Counterdefendant,

v. No. 06-56562ANGELINA RICHARDS, D.C. No.Defendant-Counterclaimant- CV 02-7583 CASAppellant, (RNBx)

and OPINIONKEITH RICHARDS, Guardian AdLitem for BRYCE RICHARDS andKENDALL RICHARDS,Defendant-Crossclaimant-Appellee.

Appeal from the United States District Courtfor the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and SubmittedMay 6, 2008—Pasadena, California

Filed August 28, 2008

Before: Kim McLane Wardlaw and Sandra S. Ikuta,Circuit Judges, and Jeremy Fogel, District Judge*

Opinion by Judge Fogel

*The Honorable Jeremy Fogel, United States District Judge for theNorthern District of California, sitting by designation.

11867

COUNSEL

Richard L. Garrigues (argued) and Varoujan Nalbandian, Tor-rance, California, for the appellant.

Richard E. Haskin (argued), Gibbs, Giden, Locher & TurnerLLP, Los Angeles, California, for the appellee.

OPINION

FOGEL, District Judge:

Nationwide Life Insurance Company (“Nationwide”)brought this non-statutory interpleader action to resolve con-flicting claims to the proceeds of a one million dollar insur-ance policy written on the life of Bryan Richards (“Bryan”),who was murdered on December 21, 2001. Bryan’s wife,

11872 RICHARDS v. RICHARDS

Angelina Richards (“Angelina”), appeals the district court’sjudgment against her and in favor of Bryan’s brother, KeithRichards (“Keith”), in his role as guardian ad litem for Bryceand Kendall Richards (“Bryce” and “Kendall”), the two minorchildren of Bryan and Angelina. Following a bench trial, thedistrict court made a factual determination that Angelina con-spired in, aided, and abetted Bryan’s murder, and thus is dis-qualified from receiving any proceeds of the life insurancepolicy under California law. Angelina asserts error in the dis-trict court’s treatment of her pretrial assertion of the FifthAmendment privilege against self-incrimination and in itsadmission of the deposition testimony of witness Gerald Stre-bendt. We have jurisdiction under 28 U.S.C. § 1291, and weaffirm.

I. BACKGROUND

Angelina and Bryan married in 1998. In 2001, Bryanobtained a life insurance policy from Nationwide in theamount of one million dollars, effective in September of thatyear. The policy names Angelina as the primary beneficiaryand names Bryce and Kendall as alternate beneficiaries.Bryan was murdered on December 21, 2001 by means of non-ligature manual strangulation. A state court jury subsequentlyconvicted Rafiel Torre (“Torre”) of the murder; Torre’sappeal of that conviction is pending.

Angelina sought an advance on the policy proceeds withindays after Bryan’s death, made a formal claim for the pro-ceeds on January 30, 2002, and received a $50,000 advanceon March 5, 2002. On September 27, 2002, pursuant to Rule22 of the Federal Rules of Civil Procedure, Nationwide filedits complaint in interpleader in the district court. The com-plaint names Angelina, Bryce and Kendall as defendants.Keith subsequently was appointed guardian ad litem for Bryceand Kendall.

11873RICHARDS v. RICHARDS

Angelina filed a cross-claim against Keith and a counter-claim against Nationwide, seeking a declaration that she isentitled to the proceeds as the primary named beneficiaryunder the policy. Keith filed a cross-claim against Angelina,seeking a declaration that Bryce and Kendall are entitled tothe proceeds, and seeking return of the $50,000 that Nation-wide advanced to Angelina. Keith asserted that Angelina con-spired in Bryan’s murder, thus disqualifying herself fromreceiving any proceeds of the policy, and that as a result thepolicy benefits are payable to Bryce and Kendall as the alter-nate named beneficiaries.1 Nationwide deposited the policyproceeds into the district court’s registry and was grantedjudgment in interpleader.

The district court conducted a bench trial and thereafterissued Findings of Fact and Conclusions of Law (“FFCL”) inwhich it determined that Angelina did conspire in, aid, andabet Bryan’s murder, and thus is disqualified from receivingany proceeds from the policy. The district court entered judg-ment against Angelina and for Keith as guardian ad litem forBryce and Kendall. The FFCL contain a lengthy narrativedescribing the events leading up to Bryan’s murder and theevidence presented at trial, summarized as follows:

Angelina met Torre at a nightclub in July or August 2001.Torre competed professionally in hand-to-hand mixed martialarts and also was a martial arts instructor. Sometime thereaf-ter, Angelina and Torre became lovers. Angelina testified attrial that her relationship with Torre did not become romanticuntil after Bryan’s death. Several other witnesses testified thatby the fall of 2001 Angelina’s marriage was strained, that

1California Probate Code § 252 provides that: “[a] named beneficiary ofa bond, life insurance policy, or other contractual arrangement who feloni-ously and intentionally kills the principal obligee or the person uponwhose life the policy is issued is not entitled to any benefit under the bond,policy, or other contractual arrangement, and it becomes payable asthough the killer had predeceased the decedent.” Cal. Prob. Code § 252.


Bryan spoke of divorcing her, and that Angelina and Torrewere seen together regularly, acting in a manner that sug-gested they were having an affair. In September 2001 Ange-lina loaned Torre $10,000, and in October 2001 she co-signedTorre’s lease for commercial space to start a martial arts stu-dio. The property manager testified that Bryan was not a partyto the negotiations or the lease, and that Angelina and Torrenever mentioned Bryan. Angelina testified that she and Bryanhad problems but were committed to staying married.

At approximately 11:00 p.m. on December 21, 2001, Ange-lina called Keith’s wife, Lisa Richards (“Lisa”), and statedthat she did not know where Bryan was. Angelina called thepolice the following morning, December 22, to report Bryanmissing. Angelina also called Keith and told him that Bryanhad planned to go to a warehouse to pick up Christmas giftsstored there. Angelina asked Keith to check the warehouse.Keith did so, but found no evidence that Bryan had been thererecently. Sometime on the afternoon of December 22, Bryan’sbrothers, Keith and Matthew Richards (“Matthew”), visitedAngelina at home. Angelina was drinking wine with a femalefriend. Keith testified that he noticed Bryan’s insurance policybinder on the kitchen table; that he asked Angelina if she hadfound Bryan’s life insurance policy, and she said that she hadnot; and that later that evening the policy binder was movedto the top of the washing machine in the laundry room, whereit was partially hidden under a pile of clothes.

Keith testified that at some point he asked Angelina whereBryan’s white utility truck was, and that Angelina said Torrehad it. Bryan had let Torre drive the truck in the past. AtKeith’s request, Angelina called Torre and asked him to bringthe truck to the house. When Torre arrived, Matthew lookedin the truck’s lock box for Bryan’s Glock handgun, whichnormally was kept there, but the gun was gone. Keith testifiedthat while he and Matthew were outside near the truck, Ange-lina and Torre spoke to each other in the doorway of thehouse. Torre left with Bryan’s utility truck, after which Ange-


lina stated for the first time that Bryan had gone to the storeto buy firewood. According to Keith, Angelina asked him tosearch for Bryan at nearby grocery stores. Keith and Matthewleft the house at about 9:00 p.m. to do so. Approximatelytwenty minutes later, they discovered Bryan’s other pick-uptruck in the parking lot of a nearby Albertson’s market.Bryan’s body was in the bed of the truck. He had been stran-gled.

On the following morning, December 23, sheriff’s detec-tives interviewed Angelina, other members of Bryan’s family,and Torre. When asked about life insurance, Angelina statedthat Bryan had life insurance but that she did not know theamount of the death benefit. Angelina told the detectives thatat one time Bryan had been involved with a man namedThomas Esparza (“Esparza”) in a scheme involving thereceipt and sale of stolen medical equipment, and that bothBryan and Esparza had been convicted of crimes arising outof that scheme. Angelina stated that after his release fromprison earlier in the year, Esparza frequently had called theRichards’ home, had attempted to extort money from Bryan,and had argued with Bryan. Torre likewise told the detectivesabout Bryan’s conflict with Esparza. Neither Angelina norTorre told the detectives about their relationship.

Sometime later that day, or within a few days, Angelinaspoke with the insurance agent who sold Bryan the policy,Phil Beh (“Beh”), and inquired whether the death benefit was$500,000 or $1,000,000. Beh testified that Angelina calledhim, while Angelina testified that Beh called her. Beh furthertestified that he and Angelina spoke several times in the daysafter Bryan’s death, and that Angelina asked for an advanceon the policy’s benefits. Beh characterized the promptness ofAngelina’s inquiry as surprising, atypical and odd. Beh alsotestified that Angelina was calm and unemotional during theirconversations. Angelina made a formal claim for the policyproceeds on January 30, 2002, and received a $50,000advance on March 5, 2002. Six days later, on March 11,


Angelina purchased a vacation package to Cancun, Mexicofor herself and Torre. Witnesses testified that Torre constantlywas at Angelina’s home beginning approximately two weeksafter Bryan’s death.

Lisa testified that she and Matthew’s wife, Linda Richards(“Linda”), invited Angelina out for the evening of February16, 2002, Bryan’s birthday. According to Lisa, Angelinastated on that occasion that Bryan was a drug dealer, that thesheriff’s department had recovered the drug “ecstacy” inBryan’s pick-up truck, and that there was an ongoing investi-gation into a possible link between Bryan’s drug activities andhis death. Sheriff’s detectives testified that no drugs werefound in Bryan’s truck and that they never suspected Bryanof dealing drugs.

A. Deposition Testimony Of Gerald Strebendt

Gerald Strebendt (“Strebendt”), a close personal friend ofTorre, did not testify in person at the trial. The district courtadmitted his prior deposition testimony over Angelina’sobjection. The court found that Strebendt resided in NorthBend, Oregon, and thus that his deposition testimony wasadmissible under former Rule 32(a)(3)(B) of the FederalRules of Civil Procedure, now Rule 32(a)(4)(B).2 That provi-sion states in relevant part that a party may use the depositionof a witness at a hearing or trial if the court finds “that thewitness is more than 100 miles from the place of hearing ortrial.” Fed. R. Civ. P. 32(a)(4)(B) (formerly Fed. R. Civ. P.32(a)(3)(B)). The court rejected as unsupported by the evi-dence Angelina’s assertion that Strebendt in fact resided inLos Angeles, California, and thus was not subject to the appli-cable provision.

2Rule 32 was amended effective December 1, 2007 as part of a generalrestyling of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 32 &note. The provision relied upon by the district court now appears at Rule32(a)(4)(B) without substantive change.


Strebendt is a professional fighter and martial arts instruc-tor, and a former U.S. Marine sniper and sniper instructor. Hewas deposed on February 13 and 14, 2004, at which time hetestified that he met Angelina through Torre in early Septem-ber 2001, and that later the same month he witnessed Ange-lina and Torre get Bryan intoxicated so that the two of themcould spend the evening together without Bryan’s knowledge.Angelina testified at trial that the idea to get Bryan intoxicatedwas proposed by others, and that while she drove Torre to hiscar after Bryan went home, she did not have a sexual encoun-ter with Torre that night.

During his deposition, Strebendt testified that Angelina toldhim that she and Torre were having an affair. Strebendt alsotestified that he saw Angelina give Torre $10,000 in cash, andthat shortly afterward Torre said the following: “Angelina justwishes she could be rid of Bryan, she wishes he was just gone. . . and she’s even willing to pay somebody $10,000 to do it. . . and she knows you [Strebendt] were a sniper in theMarines and she wanted to know if you’re interested . . . .”Strebendt stated that he told Torre that he would not killBryan.

According to Strebendt, Torre called him several times inlate December and early and mid-January, stated that Bryanhad been killed, and emphasized his need to see Strebendt inperson. Strebendt testified that when he met with Torre inearly or mid-January 2002, Torre admitted to killing Bryanbut claimed that it was self-defense. Torre said that Bryanaccused him of having an affair with Angelina and pointed aGlock handgun at him. Torre claimed that he knocked the gunfrom Bryan’s hands and applied a choke hold known in Bra-zilian Ju-Jitsu as “Mata Leon,” or “To Kill the Lion.” Accord-ing to Strebendt, Torre stated that he just wanted to renderBryan unconscious, but that he felt something crush inBryan’s neck, and that when he released the hold Bryan wasdead.3 Torre asked Strebendt to provide an alibi, which Stre-

3The medical examiner testified that although Bryan’s hyoid bone(located in the throat) was broken, the break did not cause his death. The


bendt refused to do, although Strebendt did agree to keepBryan’s handgun. Strebendt stored the gun at his home inOregon.

Strebendt subsequently contacted sheriff’s detectives,recounted the conversation with Bryan, and gave them thegun. Strebendt agreed to make recorded telephone calls to Ange-lina.4 On December 11, 2003, which was the first time Stre-bendt had spoken with Angelina in approximately two years,Strebendt told Angelina that “[t]he gun that Rafiel gave mehas been recovered,” to which Angelina responded that shedid not know what Strebendt was talking about and that hehad better talk to Torre. On December 12, 2003, during theirsecond conversation, Strebendt told Angelina that Torre hadadmitted to killing Bryan in self-defense, had given StrebendtBryan’s gun, and had told Strebendt that Angelina would pay$10,000 for someone to kill Bryan. Angelina responded:“That’s ridiculous. I would never say that.” Angelina did notcall the sheriff’s department or any other authorities to reportthe conversation. When questioned by sheriff’s deputies thefollowing day, Angelina admitted that she had spoken to Stre-bendt the previous evening, but said the only matter discussedwas whether Torre was home. When asked how Strebendtcame to possess Bryan’s gun, Angelina said that she did notknow.

At trial, Angelina raised a hearsay objection to Strebendt’stestimony regarding Torre’s statements. The district courtmade a factual finding that Angelina and Torre were engagedin a conspiracy to murder Bryan, and that Torre’s statements

examiner testified that Bryan died of non-ligature manual strangulation,and opined that a choke hold must have been applied to Bryan’s neck forseveral minutes. There were no signs of struggle or marks on Bryan’sbody consistent with defense wounds.

4Strebendt also made recorded telephone calls to Torre, which are notreferenced in the district court’s FFCL.


as reported by Strebendt thus were admissible as non-hearsaystatements of a co-conspirator under Rule 801(d)(2)(E) of theFederal Rules of Evidence.

On December 17, 2003, Torre was arrested and chargedwith Bryan’s murder. Following a jury trial, Torre was con-victed of murder in the first degree for killing Bryan with theintent to profit from the policy proceeds.

B. Angelina’s Assertion Of The Fifth AmendmentPrivilege

Angelina asserted the Fifth Amendment privilege againstself-incrimination at Torre’s criminal trial and declined to tes-tify. She likewise invoked the privilege during her depositiontaken in the instant lawsuit, refusing to answer the followingseven questions:

a. “Did you ever express to Rafiel Torre a desireto, quote, get rid of Brian [sic]?”

b. “[D]id you ever tell Rafiel to kill Brian [sic]?”

c. “Prior to Brian’s [sic] murder, did you ever tellanybody that you and Rafiel were going to moveaway together?”

d. “[D]id you have any involvement at all in Brian[sic] Richards’ murder?”

e. “Did you ever proposition Rafiel to kill Brian[sic] Richards?”

f. “Did you ever ask Gerald Strebendt to kill Brian[sic] Richards?”

g. “Did you ever ask Rafiel Torre to provide youwith an alibi because you had killed Brian [sic]Richards?”


The district court precluded Angelina from testifying at trialas to her involvement, or lack thereof, in Bryan’s murderbecause she had refused to answer questions about this sub-ject during her deposition. Angelina was permitted to testifyabout all other subjects. The district court also exercised itsdiscretion to draw an adverse inference from Angelina’sassertion of the Fifth Amendment privilege against self-incrimination.

II. STANDARDS OF REVIEW

“A district court’s ruling precluding testimony is an eviden-tiary ruling that is reviewed for abuse of discretion.” UnitedStates v. Lynch, 437 F.3d 902, 913 (9th Cir. 2006) (citingUnited States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991)).We also review for abuse of discretion a district court’s deci-sion to draw an adverse inference from a party’s invocationin a civil case of the Fifth Amendment privilege against self-incrimination. SEC v. Cherif, 933 F.2d 403, 417 (7th Cir.1991) (applying abuse of discretion standard); see also SECv. Colello, 139 F.3d 674, 677 (9th Cir. 1998) (noting that adistrict court has discretion whether to draw an adverse infer-ence from the invocation in a civil case of the privilegeagainst self-incrimination).

We review for abuse of discretion a district court’s decisionto admit deposition testimony under Rule 32(a)(4)(B) of theFederal Rules of Civil Procedure. See Garcia-Martinez v. City& County of Denver, 392 F.3d 1187, 1191-92 (10th Cir.2004). Finally, “[w]e review for an abuse of discretion thedistrict court’s decision to admit coconspirators’ statements,and review for clear error the district court’s underlying fac-tual determinations that a conspiracy existed and that thestatements were made in furtherance of that conspiracy.”United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003)(citing United States v. Bowman, 215 F.3d 951, 960 (9th Cir.2000)).


III. DISCUSSION

A. Preclusion Of Angelina’s Testimony

At trial, Angelina attempted to testify that she did not haveanything to do with Bryan’s murder, but the district court pre-cluded any testimony on this subject on the ground that Ange-lina had asserted the Fifth Amendment privilege against self-incrimination when asked during her deposition about herinvolvement in the murder.5 The district court found expresslythat Keith was prejudiced by Angelina’s refusal to answerdeposition questions about this subject.

[1] Trial courts generally will not permit a party to invokethe privilege against self-incrimination with respect to deposi-tion questions and then later testify about the same subjectmatter at trial. See FTC v. Sharp, 782 F. Supp. 1445, 1452 (D.Nev. 1991). The Federal Rules of Civil Procedure “contem-plate . . . ‘full and equal discovery’ . . . so as to prevent sur-prise, prejudice and perjury” during trial. Id. “[B]ecause theprivilege may be initially invoked and later waived at a timewhen an adverse party can no longer secure the benefits ofdiscovery, the potential for exploitation is apparent.” SEC v.Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994). Therights of the other litigant must be taken into consideration“when one party invokes the Fifth Amendment during discov-ery, but on the eve of trial changes his mind and decides towaive the privilege. At that stage, the adverse party — havingconducted discovery and prepared the case without the benefitof knowing the content of the privileged matter — would beplaced at a disadvantage.” Id. at 191; see also Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 577 (1st Cir. 1989)(“A defendant may not use the fifth amendment to shield her-self from the opposition’s inquiries during discovery only toimpale her accusers with surprise testimony at trial.”). “The

5The district court struck Angelina’s response when her attorney askedwhether she was involved in the planning of Bryan’s death.


opportunity to combat the newly available testimony might nolonger exist, a new investigation could be required, andorderly trial preparation could be disrupted.” Graystone Nash,25 F.3d at 191. “ ‘Because the privilege is constitutionallybased,’ ” however, “the competing interests of the partyasserting the privilege, and the party against whom the privi-lege is invoked must be carefully balanced,” and “ ‘the detri-ment to the party asserting it should be no more than isnecessary to prevent unfair and unnecessary prejudice to theother side.’ ” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d1258, 1265 (9th Cir. 2000) (quoting Graystone Nash, 25 F.3dat 192) (addressing propriety of adverse inference as a conse-quence of asserting Fifth Amendment privilege during pretrialdeposition).

Angelina argues, as she did at trial, that Keith was not prej-udiced by her assertion of the privilege at her deposition. Sheasserts that during the investigation of Bryan’s murder, sheanswered all questions asked by the investigating officers,including questions as to whether she was involved in Bryan’smurder, and that she denied any involvement unequivocally.She also contends that Keith knew of those denials, and thather deposition testimony on the subject would not have pro-vided any additional useful information. She further arguesthat her statements to the officers investigating Bryan’s deathwere sufficient to waive her Fifth Amendment privilege, andthat Keith could have filed a motion to compel her to answerdeposition questions regarding the issue of her involvement,or lack of involvement, in Bryan’s death.

[2] Angelina’s arguments are not persuasive. Many of theinterviews with investigating officers occurred shortly afterBryan’s death in December 2001, approximately four yearsprior to the deposition. During those years, a number of sig-nificant events occurred that might have altered Angelina’stestimony and certainly would have been proper subjects forinquiry during the deposition. Most significantly, Torre wasarrested and convicted of Bryan’s murder, and Strebendt’s


statements describing the conspiracy between Torre andAngelina came to light. Angelina was not questioned aboutthese events in any proceeding, as she did not testify atTorre’s criminal trial and declined to answer questions regard-ing her alleged involvement in the murder during her deposi-tion in the instant case. Under these circumstances, weconclude that the district court’s finding of prejudice was war-ranted.

[3] Moreover, Angelina’s statements to investigating offi-cers in the days following Bryan’s death did not waive herprivilege against self-incrimination with respect to the latercriminal proceeding against Torre or with respect to theinstant civil proceeding. See United States v. Licavoli, 604F.2d 613, 623 (9th Cir. 1979) (holding that voluntary testi-mony before a grand jury did not waive the privilege at trial,because “[i]t is settled that a waiver of the Fifth Amendmentprivilege is limited to the particular proceeding in which thewaiver occurs”) ; see also McCarthy v. Arndstein, 262 U.S.355, 357—59 (1923) (holding that when a witness’s previousdisclosure is not an actual admission of guilt or incriminatingfacts, the witness subsequently may assert the privilege anddecline to testify as to matters that might incriminate him).

[4] Notably, the district court precluded Angelina from tes-tifying only as to the subject as to which she asserted the FifthAmendment privilege, that is, her involvement (or lackthereof) in Bryan’s murder. The court’s order was narrowlytailored to impose upon Angelina only that detriment neces-sary to prevent unfair prejudice to Keith. Accordingly, theorder did not constitute an abuse of discretion.

[5] Even if we were to find that the district court did err inprecluding a portion of Angelina’s testimony, any such errorwas harmless. When reviewing the effect of an evidentiaryruling in a civil case, we presume prejudice absent a showingthat it is more probable than not that the same verdict wouldhave been reached without the erroneous ruling. Obrey v.


Johnson, 400 F.3d 691, 701 (9th Cir. 2005) (citing Haddad v.Lockheed Cal. Corp., 720 F.2d 1454, 1459 (9th Cir. 1983)).Here, the district court made an explicit adverse credibilityfinding with respect to Angelina’s assertion that she did notknow the amount of the policy’s death benefit, and noted sev-eral instances in which Angelina’s testimony conflicted withother evidence. The court also cited to more than a dozenfacts in support of its determination that Angelina wasinvolved in Bryan’s murder. Based upon this record, we con-clude that it is more probable than not that the district courtwould have reached the same verdict even if Angelina hadtestified.

B. Adverse Inference

[6] In addition to precluding Angelina from testifying withrespect to her involvement in Bryan’s murder, the districtcourt drew an adverse inference from Angelina’s assertion ofthe Fifth Amendment as to this subject. When a party assertsthe privilege against self-incrimination in a civil case, the dis-trict court has discretion to draw an adverse inference fromsuch assertion. See Glanzer, 232 F.3d at 1264 (citing Colello,139 F.3d at 677). A decision not to draw the inference“ ‘poses substantial problems for an adverse party who isdeprived of a source of information that might conceivably bedeterminative in a search for the truth.’ ” Id. (quoting Gray-stone Nash, 25 F.3d at 190). However, “under certain circum-stances . . . an adverse inference from an assertion of one’sprivilege not to reveal information is too high a price to pay.”Id. at 1265. “The tension between one party’s Fifth Amend-ment rights and the other party’s right to a fair proceeding isresolved by analyzing each instance where the adverse infer-ence was drawn, or not drawn, on a case-by-case basis underthe microscope of the circumstances of that particular civil lit-igation.” Id. (citing Graystone Nash, 25 F.3d at 192). Theinference may not be drawn “unless there is a substantial needfor the information and there is not another less burdensomeway of obtaining that information.” Id. (citing Serafino v.


Hasbro, Inc., 82 F.3d 515, 518-19 (1st Cir. 1996). The districtcourt must determine “whether the value of presenting [the]evidence [is] substantially outweighed by the danger of unfairprejudice” to the party asserting the privilege. Id. at 1266 (cit-ing Fed. R. Evid. 403; Brink’s Inc. v. City of New York, 717F.2d 700, 710 (2d Cir. 1983)). Moreover, the inference maybe drawn only when there is independent evidence of the factabout which the party refuses to testify. Id. at 1264.

Angelina argues that there was no substantial need for herdeposition testimony as to her involvement in Bryan’s mur-der; that in any event she offered trial testimony on this sub-ject; that there is no independent evidence of her involvementin the murder; and that the adverse inference constituted adouble penalty for her legitimate assertion of her privilegeagainst self-incrimination, because she already was precludedfrom testifying as to her alleged involvement.

[7] The district court found explicitly that there was a sub-stantial need for Angelina’s testimony with respect to thedeposition questions she refused to answer, because thosequestions went to the central question in this case, which waswhether Angelina asked Torre to murder Bryan or had anyother involvement in his death. As discussed previously,Angelina asserts that she told investigators that she had noinvolvement in Bryan’s death, and that obviously she wouldhave said the same thing had she testified. Angelina arguesthat under these circumstances Keith was not deprived of anyinformation necessary to litigate this case. Angelina’s argu-ment ignores the fact that the deposition questions at issuewent beyond a simple, “did you conspire to kill your hus-band?” For example, one question asked whether before themurder Angelina told others that she and Torre were going tomove away together. Another asked whether Angelina evertold Torre that she wanted to be rid of Bryan. The responsesto these questions are not apparent from the record, and in factthere are conflicts in the evidence as to the status of Angeli-


na’s relationships with Bryan and with Torre. Keith was enti-tled to pursue these avenues of inquiry.

With respect to Angelina’s offer of trial testimony on thesesubjects, the district court was within its discretion to precludesuch testimony on the ground of prejudice to Keith, as dis-cussed above. Although Angelina had offered bare denials ofher involvement during the investigation of Bryan’s 2001murder, by the time of her 2005 deposition a number of sig-nificant new facts had come to light, including Torre’s crimi-nal conviction for the murder and Strebendt’s statementsregarding Angelina’s involvement.

With respect to the requirement of independent evidence ofAngelina’s involvement in the murder, the district court’sFFCL list numerous facts and pieces of evidence, in additionto Strebendt’s testimony, in support of the court’s finding thatAngelina conspired in, aided, and abetted Bryan’s murder: (1)that Bryan possessed a policy with a one million dollar deathbenefit; (2) Angelina’s knowledge of the death benefit; (3)Angelina’s affair with Torre; (4) that Angelina and Torreleased a commercial building together without Bryan’sknowledge or participation; (5) Angelina’s knowledge thather marriage might end in divorce; (6) evidence that Torremurdered Bryan; (7) that Angelina and Torre initially con-cealed their affair from the detectives investigating Bryan’sdeath; (8) Angelina’s misrepresentations to sheriff’s detec-tives regarding her knowledge of the policy; (9) Angelina’squery to Beh within days after Bryan’s murder as to theamount of the death benefit; (10) that Angelina’s affair withTorre continued after Bryan’s murder; (11) that Angelina pur-chased the Cancun vacation package for herself and Torre sixdays after receiving the $50,000 advance on the policy bene-fits; (12) Angelina’s lies to sheriff’s detectives regarding herDecember 2003 conversations with Strebendt; and (13) theadverse inference drawn from Angelina’s invocation of theFifth Amendment right against self-incrimination. This direct


and circumstantial evidence satisfies the requirement of inde-pendent evidence of Angelina’s involvement in the murder.

[8] Angelina argues that the district court failed to considerevidence that she was not involved in the murder, citing to thetranscript of a telephone call Strebendt made to Torre at thebehest of investigating officials. In that call, Torre unequivo-cally denied that Angelina wanted Bryan killed or knew aboutTorre’s involvement. It is true that the district court did notaddress this particular piece of evidence. However, it didaddress at length other evidence and arguments made byAngelina. For example, it addressed Angelina’s argument thatBryan had purchased expensive gifts for her and paid for herplastic surgery, and that this conduct was inconsistent with thetheory that he was contemplating divorce. It also noted Ange-lina’s contention that Torre, as Angelina’s lover, obviouslywould have been a prime suspect in Bryan’s murder, and thatto contend that she would have conspired with Torre underthose circumstances is to impute to her an improbable degreeof stupidity. The district court clearly considered the record asa whole, and found that the totality of the evidence supporteda conclusion that Angelina was involved in Bryan’s murder.Reaching such a conclusion on this record was not an abuseof discretion.

[9] Angelina claims that she was subjected to a double pen-alty for a legitimate exercise of her Fifth Amendment privi-lege, first by being precluded from testifying at trial that shedid not have anything to do with Bryan’s murder, and then byan adverse inference that she did participate in Bryan’s mur-der because of her lack of testimony as to this point. WhileAngelina’s “piling on” argument has some appeal, we con-clude that given the state of the evidence the district court didnot abuse its discretion in imposing both sanctions. As is dis-cussed above, the district court was well within its discretionto exclude Angelina’s testimony as to her involvement, orlack thereof, in Bryan’s murder. Faced with an absence of anytestimony from Angelina on the central issue in the case, the


district court was entitled to draw the adverse inference. Thecourt observed appropriately that because the case was triedto the court rather than a jury, there was no danger that theadverse inference would be given undue weight.

[10] We caution that what Angelina characterizes as a“double penalty” may be too extreme a sanction in somecases, and that district courts should be hesitant to impose itabsent compelling circumstances. That said, we cannot saythat the district court in this case abused its discretion. Thedistrict court’s decision was thoroughly and carefully rea-soned. The adverse inference was only one of fourteen factslisted by the district court in support of its conclusion thatAngelina conspired in, aided, and abetted Bryan’s murder.More probably than not, the court would have reached thesame verdict even absent the inference.

C. Strebendt As An Unavailable Witness

The district court admitted Strebendt’s deposition testi-mony on the ground that he resided in Oregon and thus wasunavailable for trial. Under Rule 32(a)(4)(B) of the FederalRules of Civil Procedure (formerly Rule 32(a)(3)(B)), a partymay use the deposition of a witness at a hearing or trial if thecourt finds “that the witness is more than 100 miles from theplace of hearing or trial.” Fed. R. Civ. P. 32(a)(4)(B).

[11] Angelina asserted at trial, and argues again here, thatStrebendt in fact resided in Los Angeles and thus was not sub-ject to Rule 32(a)(4)(B). Angelina’s argument at trial reliedupon a July 2006 posting on a martial arts website. The post-ing provided background on Strebendt and indicated that his“Home City” was “Los Angeles, CA.” The district court char-acterized the website posting as an “unauthenticated andambiguous statement,” and concluded that it was insufficientto demonstrate that Strebendt resided in California given theevidence to the contrary. The court noted that Strebendt testi-fied at his deposition that he lives in Oregon; that Keith had


filed a witness list identifying Strebendt’s residence asEugene, Oregon; and that Keith’s counsel had telephoned theOregon telephone number provided by Strebendt and spokenwith him at that number. Based upon this record, the districtcourt did not abuse its discretion in admitting Strebendt’sdeposition testimony under Rule 32(a)(4)(B).

Angelina argues that the district court also abused its dis-cretion in admitting Strebendt’s testimony under Rule804(b)(1) of the Federal Rules of Evidence. However,because Strebendt’s testimony properly was admitted underRule 32(a)(4)(B), it need not also meet the requirements foradmissibility set forth in Rule 804(b)(1). Under Rule 802,hearsay is admissible where allowed by the Federal Rules ofEvidence, or “by other rules prescribed by the Supreme Courtpursuant to statutory authority or by Act of Congress.” Fed.R. Evid. 802. Rule 32(a)(4)(B) is one of these “other rules.”See Fed. R. Evid. 802 advisory committee’s note (identifyingRule 32 as one of the “other rules”); Fed. R. Civ. P. 32 advi-sory committee’s note (explaining that new Rule 32(a) wasintended to “eliminate[ ] the possibility of certain technicalhearsay objections which are based, not on the contents ofdeponent’s testimony, but on his absence from court”). Oursister circuits have recognized that Rule 32(a) is an indepen-dent exception to the hearsay rule. See Ueland v. UnitedStates, 291 F.3d 993, 996 (7th Cir. 2002) (“Rule 32(a), as afreestanding exception to the hearsay rule, is one of the ‘otherrules’ to which Fed. R. Evid. 802 refers. Evidence authorizedby Rule 32(a) cannot be excluded as hearsay, unless it wouldbe inadmissible even if delivered in court.”); Angelo v. Arm-strong World Indus., Inc., 11 F.3d 957, 962-63 (10th Cir.1993) (“Deposition testimony is normally inadmissible hear-say, but Fed. R. Civ. P. 32(a) creates an exception to the hear-say rules.”); S. Indiana Broadcasting, Ltd. v. FCC, 935 F.2d1340, 1341—42 (D.C. Cir. 1991) (recognizing that Fed. R.Civ. P. 32(a) creates an exception to the hearsay rule); UnitedStates v. Vespe, 868 F.2d 1328, 1339 (3d Cir. 1989) (Rule32(a)(3)(B) “constitutes an independent exception to the hear-


say rule”); Carey v. Bahama Cruise Lines, 864 F.2d 201, 204& n.2 (1st Cir. 1988) (explaining that Rule 32(a)(3)(B) “ismore permissive than Federal Rule of Evidence 804(a)(5)”).Because the district court did not abuse its discretion in admit-ting Strebendt’s deposition testimony under Rule 32(a)(4)(B),Rule 804 is irrelevant to our analysis.

D. Strebendt’s Testimony Regarding Torre’s Statements

Angelina also raised a hearsay objection to the admissionof Strebendt’s testimony regarding Torre’s statements. Thedistrict court made a factual finding that Angelina and Torrewere engaged in a conspiracy to murder Bryan, and that as aresult Torre’s statements as reported by Strebendt wereadmissible as non-hearsay statements of a co-conspiratorunder Rule 801(d)(2)(E) of the Federal Rules of Evidence.That rule provides in relevant part that a statement is not hear-say if it is “a statement by a coconspirator of a party duringthe course and in furtherance of the conspiracy.” Fed. R. Evid.801(d)(2)(E). The proponent of the statement must demon-strate by a preponderance of the evidence the existence of,and participation in, the conspiracy. United States v. Peralta,941 F.2d 1003, 1005 (9th Cir. 1991) (citing Bourjaily v.United States, 483 U.S. 171, 175 (1987)).

[12] Angelina argues that there was insufficient evidence inthe record to support a finding that she and Torre wereengaged in a conspiracy to murder Bryan, and that the districtcourt failed to consider evidence in her favor as to this point.This argument is identical to that addressed above withrespect to the district court’s decision to draw an adverseinference. It is apparent from the FFCL that the district courtconsidered the record as a whole and made a factual determi-nation that Angelina did conspire with Torre to kill Bryan. Asdiscussed previously, the district court identified more than adozen specific facts upon which it relied in reaching this con-clusion. The conclusion is not clearly erroneous. It is apparentthat, assuming a conspiracy between Angelina and Torre, the


subject statements were made in the course of and in further-ance of the conspiracy. Accordingly, the district court did notabuse its discretion in admitting the subject statements underRule 801(d)(2)(E).

IV. CONCLUSION

We conclude that the district court did not abuse its discre-tion in precluding Angelina from testifying that she was notinvolved in Bryan’s murder, or in drawing an adverse infer-ence from her assertion of the Fifth Amendment privilegeagainst self-incrimination, and that any error in these rulingswas harmless. We also conclude that the district court prop-erly admitted Strebendt’s deposition testimony.

AFFIRMED.


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